USA v. Guerra

Filing

UNPUBLISHED OPINION FILED. [09-40180 Affirmed ] Judge: EHJ , Judge: TMR , Judge: CH Mandate pull date is 10/29/2010 for Appellant Eduardo Guerra [09-40180]

USA v. Guerra

Doc. 0

Case: 09-40180

Document: 00511258805

Page: 1

Date Filed: 10/08/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40180 October 8, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. E D U A R D O GUERRA, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:07-CR-144-7

B e fo r e JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges. P E R CURIAM:* E d u a r d o Guerra appeals the total 217-month sentence he received after p le a d in g guilty to two counts of a twelve-count second superseding indictment fo r knowingly possessing with the intent to distribute more than 500 grams of c o c a in e (Count Nine) and possessing one or more firearms in furtherance of a d r u g trafficking crime (Count Eleven). Guerra argues that he was misled and t h e r e f o r e prejudiced by an error in the citation of the federal statute in the s e c o n d superseding indictment. He also argues that the district court com-

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 09-40180

Document: 00511258805

Page: 2

Date Filed: 10/08/2010

No. 09-40180 m it t e d a significant procedural error that substantially affected his rights when it did not correctly admonish him that Count Eleven would subject him to a m a n d a t o r y minimum 10-year sentence. C o u n t Eleven of the second superseding indictment alleged that Guerra d id knowingly possess . . . a [sic] Olympic Arms, Model MFR.223, semi-automatic assault short barrel rifle, Serial Number SM9579, . . . in furtherance of a drug trafficking crime for which he may be p r o s e c u t e d in a court of the United States, namely, conspiracy to p o s s e s s with intent to distribute a controlled substance . . . . I n violation of Title 18, United States Code, Section 9 2 4 (c )(1 )(A )(i). G u e r r a 's possession of a short-barreled rifle subjected him to a 10-year m a n d a t o r y minimum sentence pursuant to § 924(c)(1)(B)(i). Guerra asserts that t h e indictment's failure to reference § 924(c)(1)(B)(i) misled him to his prejudice b e c a u s e he pleaded guilty believing that he was subject to only a five-year m a n d a t o r y minimum pursuant to § 924(c)(1)(A)(i). W e review the validity of an indictment de novo. See United States v. T h r e a d g ill, 172 F.3d 357, 373 (5th Cir. 1999). An indictment must meet minimal c o n s t it u t io n a l standards, and its sufficiency is measured by whether "(1) each c o u n t contains the essential elements of the offense charged, (2) the elements are d e s c r ib e d with particularity, without any uncertainty or ambiguity, and (3) the c h a r g e is specific enough to protect the defendant against a subsequent p r o s e c u t io n for the same offense." Id. at 366; see also United States v. Gonzales, 4 3 6 F.3d 560, 569 (5th Cir. 2006) (noting that an indictment meets minimum c o n s t it u t io n a l standards when it alleges each element of the crime in such a m a n n e r as to allow the accused both to prepare a defense and later to invoke the d o u b le jeopardy clause). N e it h e r an error in a citation or the omission of a citation is a ground to d is m is s an indictment or reverse a conviction "[u]nless the defendant was misled 2

Case: 09-40180

Document: 00511258805

Page: 3

Date Filed: 10/08/2010

No. 09-40180 a n d thereby prejudiced." FED. R. CRIM. P. 7(c)(2). The written statements, r a t h e r than the citations to statutes, have long been considered the controlling fe a t u r e s of an indictment. See United States v. Garcia, 954 F.2d 273, 276 (5th C ir . 1992). Furthermore, our review of an indictment is governed by practical r a t h e r than technical considerations, and we will not reverse where the d e fic ie n c ie s are minor and the defendant has not been prejudiced. United States v . Chappell, 6 F.3d 1095, 1099 (5th Cir. 1993). C o u n t Eleven of the second superseding indictment closely tracked the la n g u a g e of § 924(c)(1) by specifically alleging that Guerra possessed, in addition t o other weapons, a semi-automatic short-barreled rifle in furtherance of a drug t r a ffic k in g crime (conspiracy to possess with intent to distribute a controlled s u b s t a n c e ) for which he could be prosecuted. Accordingly, the indictment was c o n s t it u t io n a lly sufficient in that it unambiguously described the essential e l e m e n t s of the offense and was precise enough to protect Guerra from a s u b s e q u e n t prosecution for the same crime. See Threadgill, 172 F.3d at 366. Moreover, Guerra could not have reasonably been misled to his prejudice b e c a u s e Count Eleven explicitly and adequately alleged facts consistent with the o ffe n s e listed in § 924(c)(1)(B)(i), namely that Guerra possessed a short-barreled r ifle during the commission of a drug trafficking crime. See United States v. B o y e tt, 923 F.2d 378, 378 n.1 (5th Cir. 1991). Guerra pleaded guilty to the facts a s written in the indictment, and thus was put on sufficient notice that he could b e subject to a mandatory minimum of 10 years for possession of a shortb a r r e le d rifle. See United States v. Quintero, 872 F.2d 107, 111 (5th Cir. 1989). D u r i n g rearraignment, the district court initially began to admonish G u e r r a that he was subject to a 10-year mandatory minimum for Count Eleven d u e to his possession of a short-barreled rifle. However, the Government

in t e r v e n e d and suggested that Guerra was subject to not less than five years in

3

Case: 09-40180

Document: 00511258805

Page: 4

Date Filed: 10/08/2010

No. 09-40180 p r is o n for Count Eleven. Confusion about the applicable range of punishment e n s u e d and, after much discussion, the district court eventually admonished G u e r r a that he could be sentenced to between five years and life in prison for C o u n t Eleven. Guerra argues that the district court's incorrect admonishment a s to the applicable mandatory minimum sentence substantially affected his r ig h ts . G u e r r a did not raise the issue of procedural error before the district court; a c c o r d in g ly , review is for plain error only. United States v. Lopez-Velasquez, 5 2 6 F.3d 804, 806 (5th Cir. 2008). To establish that a violation of Federal Rule o f Criminal Procedure 11 affects substantial rights, a defendant must d e m o n s t r a t e a "reasonable probability" that he would not have pleaded guilty " b u t for the error." United States v. Dominguez Benitez, 542 U.S. 74, 76,

1 2 4 S. Ct. 2333, 2336 (2004). Even assuming, arguendo, that the district court c o m m it t e d an obvious error, Guerra cannot demonstrate that his substantial r ig h t s were affected by any such error because he fails to even allege that he w o u l d not have pleaded guilty but for the error. See United States v. London, 5 6 8 F.3d 553, 560 (5th Cir. 2009), petition for cert. filed (U.S. Aug. 11, 2009) (N o . 09-5844). To the extent Guerra asserts that he would have been exposed t o exactly the same sentence under the Guidelines if he had insisted on going to t r ia l, and he was deprived of that option when he was misled about the m a n d a t o r y minimum sentence, we are unpersuaded. The evidence against him w a s overwhelming, and the trial process can always reveal facts that would have a lt e r e d the sentencing calculus. Guerra's argument has some appeal but is too s p e c u la t iv e to carry his burden of proving a violation of his substantial rights. For these reasons, the judgment of the district court is AFFIRMED.

4